Ofcom Broadcast Bulletin

Ofcom Broadcast Bulletin Issue number 229 7 May 203

7 May 203 Contents Introduction 3 Standards cases In Breach Phones 4U s sponsorship of network films on Channel 4 Channel 4, 26 December 202, 23:32 6 Kobots Federation: Kobots Dual Action Game sponsorship credits Cartoon Network, Cartoon Network Too, Boomerang, 8 February 203 to 7 March 203, various times 9 The Daily Show Comedy Central Extra, 5 March 203, 20:00 3 Cross promotion for Sky Sports Sky News, 3 February 203, 23:47 5 Resolved Viewer competitions Channel 5 and 5*, September to November 202, various times 7 Viewer competitions ITV and ITV2 channels, September to November 202, various times 9 Advertising Scheduling cases In Breach Advertising scheduling Bloomberg Television, various dates and times 2 Breach findings table Code on the Scheduling of Television Advertising compliance reports 25 Fairness and Privacy cases Upheld Complaint by Mr C Panorama: Gambling Nation, BBC, 5 November 202 26 2

7 May 203 Other Programmes Not in Breach 3 Complaints Assessed, Not Investigated 32 Investigations List 40 3

7 May 203 Introduction Under the Communications Act 2003 ( the Act ), Ofcom has a duty to set for broadcast content as appear to it best calculated to secure the objectives. Ofcom must include these in a code or codes. These are listed below. Ofcom also has a duty to secure that every provider of a notifiable On Demand Programme Services ( ODPS ) complies with certain requirements as set out in the Act 2. The Broadcast Bulletin reports on the outcome of investigations into alleged breaches of those Ofcom codes below, as well as licence conditions with which broadcasters regulated by Ofcom are required to comply. We also report on the outcome of ODPS sanctions referrals made by ATVOD and the ASA on the basis of their rules and guidance for ODPS. These Codes, rules and guidance documents include: a) Ofcom s Broadcasting Code ( the Code ). b) the Code on the Scheduling of Television Advertising ( COSTA ) which contains rules on how much advertising and teleshopping may be scheduled in programmes, how many breaks are allowed and when they may be taken. c) certain sections of the BCAP Code: the UK Code of Broadcast Advertising, which relate to those areas of the BCAP Code for which Ofcom retains regulatory responsibility. These include: the prohibition on political advertising; sponsorship and product placement on television (see Rules 9.3, 9.6 and 9.7 of the Code) and all commercial communications in radio programming (see Rules 0.6 to 0.8 of the Code); participation TV advertising. This includes long-form advertising predicated on premium rate telephone services most notably chat (including adult chat), psychic readings and dedicated quiz TV (Call TV quiz services). Ofcom is also responsible for regulating gambling, dating and message board material where these are broadcast as advertising 3. d) other licence conditions which broadcasters must comply with, such as requirements to pay fees and submit information which enables Ofcom to carry out its statutory duties. Further information can be found on Ofcom s website for television and radio licences. e) rules and guidance for both editorial content and advertising content on ODPS. Ofcom considers sanctions in relation to ODPS on referral by the Authority for Television On-Demand ( ATVOD ) or the Advertising Standards Authority ( ASA ), co-regulators of ODPS for editorial content and advertising respectively, or may do so as a concurrent regulator. Other codes and requirements may also apply to broadcasters and ODPS, depending on their circumstances. These include the Code on Television Access Services (which sets out how much subtitling, signing and audio description relevant The relevant legislation is set out in detail in Annex of the Code. 2 The relevant legislation can be found at Part 4A of the Act. 3 BCAP and ASA continue to regulate conventional teleshopping content and spot advertising for these types of services where it is permitted. Ofcom remains responsible for statutory sanctions in all advertising cases. 4

7 May 203 licensees must provide), the Code on Electronic Programme Guides, the Code on Listed Events, and the Cross Promotion Code. It is Ofcom s policy to describe fully the content in television, radio and on demand content. Some of the language and descriptions used in Ofcom s Broadcast Bulletin may therefore cause offence. 5

7 May 203 Standards cases In Breach Phones 4U s sponsorship of network films on Channel 4 Channel 4, 26 December 202, 23:32 Introduction Phones 4U, an independent mobile phone retailer, sponsors drama and films on Channel 4, E4 and Film 4. A total of 7 complainants contacted Ofcom about a Phones 4U sponsorship credit broadcast on Channel 4 on 26 December 202 during the film The Girl with the Dragon Tattoo. The complainants felt that the scheduling of the sponsorship credit was inappropriate and belittled the serious issues being dealt with in the film s content. Ofcom viewed the sponsorship credit and noted that it started with a close-up shot of a woman s face in bed with a man, apparently having sex. The woman paused and leaned towards the camera and said: I m faking it, can I upgrade? The sponsorship credit was broadcast at approximately 23:32 leading into an advertising break during the film The Girl with the Dragon Tattoo. Immediately before the credit the film showed a prolonged attack and disturbing rape on a young woman, the film s main character. This included a close-up of her face while she was screaming. The effect was to cut from the face of the screaming woman in the film s rape scene to the face of the woman in bed in the sponsorship credit. In addition, we noted that the next sponsorship credit, leading out of the same advertising break back into the film, continued the sexual theme and returned to the scene of the man and woman in bed used in the sponsorship credit described above. In this credit the man looked at the camera and said I ve still got my pants on, can I upgrade? Ofcom considered that the sponsorship credits raised issues warranting investigation under Rule 9.7 of the Code which states: Sponsorship must comply with both the content and scheduling rules that apply to television advertising. The BCAP Code: The UK Code of Broadcast Advertising ( the BCAP Code ) states in Section 4 that: Advertisements must not be harmful or offensive. Advertisements must take account of generally accepted to minimise the risk of causing harm or serious or widespread offence. The context in which an advertisement is likely to be broadcast must be taken into account to avoid unsuitable scheduling (see Section 32: Scheduling). Rule 32. of the BCAP Code states that: Broadcasters must exercise responsible judgement on the scheduling of advertisements and operate internal systems capable of identifying and 6

7 May 203 avoiding unsuitable juxtapositions between advertising material and programmes, especially those that could distress or offend viewers or listeners. We therefore sought formal comments from the Channel 4 (or the Licensee ) on how these credits complied with the relevant rules. Response Channel 4 said that it took concerns about the sponsorship credits very seriously and that after the broadcast it had issued the following apology to viewers who had complained directly to Channel 4: We are sorry that the sponsorship bumper for Phones 4U caused you some distress. Unfortunately, this sponsorship credit was not flagged as being inappropriate for such a sensitive part of this particular film. We have spoken to the department responsible and they are looking into ways to ensure that situations like this do not occur again in the future. Again, we can only apologise for the inadvertent offence this caused. The Licensee explained that there are 37 different Phones 4U sponsorship credits and those with a more adult nature are scheduled for post-2:00 broadcast. Channel 4 said that the sponsorship credits complained about were played in random rotation across all sponsored films on Channel 4 and Film 4 and had a post-2:00 restriction. Channel 4 said it regretted what had occurred and acknowledged that Unfortunately, the juxtaposition between the credits and this particular film inadvertently caused offence to viewers. Channel 4 submitted on receipt of the viewer complaints it carried out an urgent review of the placement of all Phones 4U credits around films and implemented processes to identify sponsored films containing potentially sensitive themes or scenes, and to ensure that only appropriate credits are placed around such material. Decision Under the Communications Act 2003, Ofcom has a statutory duty to set for broadcast content as appear to it best calculated to secure the objectives, one of which is to ensure that unsuitable sponsorship is prevented. Rule 9.7 of the Code states that sponsorship must comply with both the content and scheduling rules that apply to television advertising. Section 4 of the BCAP Code requires broadcasters to ensure that advertising is not offensive, and Rule 32. of the BCAP Code specifically requires that broadcasters take into account the scheduling of advertising in order to avoid unsuitable juxtapositions between advertising material and programmes, especially those that could distress or offend viewers. In this case, Ofcom considered that the juxtaposition of a light-hearted sponsorship credit featuring a woman during sex with a disturbing and distressing rape scene in a film was clearly unsuitable. In Ofcom s view this clearly had the potential to be offensive to viewers. As set out in the BCAP Code, broadcasters are required to have processes in place to ensure advertising material is scheduled appropriately and unsuitable juxtapositions between advertising and programmes which may cause offence are avoided. 7

7 May 203 In its submission Channel 4 gave no indication that it had any processes in place other than the post-watershed restriction on some of the Phones 4U sponsorship credits prior to this broadcast. We noted that the Licensee took steps following complaints about the inappropriate scheduling of the sponsorship credit to carry out an urgent and immediate review of the placement of Phones 4U credits and implemented new processes to ensure that sponsorship credits going forward should be scheduled appropriately. Ofcom has taken account this action by Channel 4 and the apology it issued to viewers. However we considered that, in this case, Channel 4 had had insufficient processes in place to prevent the unsuitable juxtaposition of advertising and programming material, as required by Rule 32. of the BCAP Code. Ofcom therefore considered that both sponsorship credits were in breach of the relevant rules Breaches of Rule 9.7 of the Code, with reference to Rule 32. of the BCAP Code 8

7 May 203 In Breach Kobots Federation: Kobots Dual Action Game sponsorship credits Cartoon Network, Cartoon Network Too, Boomerang, 8 February 203 to 7 March 203, various times Introduction Cartoon Network, Cartoon Network Too and Boomerang are cable and satellite channels in the children s section of the electronic programme guide. The channels primarily broadcast animated programmes. The licences for the channels are held by Turner Broadcasting System Europe Limited ( Turner or the Licensee ). Between 8 February and 7 March 203, Kobots Federation: Kobots Dual Action Game sponsored Cartoon Network, Cartoon Network Too and Boomerang. The sponsorship credits were therefore broadcast each day during this period on each channel around a variety of programmes. During routine monitoring, Ofcom noted a sponsorship credit which comprised: the Kobots logo which stated Kobots Federation Kobots Dual Action Game ; the website address www.kobotsfederation.com ; footage of children playing with the Kobots figures; and the voiceover Join the Kobots Federation. 2 Join the Funtastic. Cartoon Network sponsored by Kobots. There were also other voiceover variations as follows: Join the Kobots Federation. Join the amazing action on Cartoon Network sponsored by Kobots. Join the Kobots Federation. Cartoon Network sponsored by Kobots. Join the Kobots Federation. Join the heavyweight heroes. CN Too sponsored by Kobots. Join the Kobots Federation. CN Too sponsored by Kobots. Slide into big hits all day on Boomerang. Sponsored by Kobots. Join the Kobots Federation. Jump into big hits all day on Boomerang. Sponsored by Kobots. Join the Kobots Federation. Slide into afternoons on Boomerang. Big hits sponsored by Kobots. Join the Kobots Federation. Kobots are collectible small plastic figures which children play with either by flicking the figures at their opponent s figures or into a goal called a Kobotron. There are six Kobots teams to collect. 2 The Kobot Federation website allows users to interact with friends, put details of their Kobot toy collection online and play online Kobot games alone or with friends. 9

7 May 203 Join the Kobots Federation. Boomerang sponsored by Kobots. Ofcom considered the material raised issues warranting investigation under the following Code rule: Rule 9.22: Sponsorship credits must be distinct from advertising. In particular: (a) Sponsorship credits broadcast around sponsored programmes must not contain advertising messages or calls to action. Credits must not encourage the purchase or rental of the products or services of the sponsor or a third party. The focus of the credit must be the sponsorship arrangement itself. Such credits may include explicit reference to the sponsor s products, services or trade marks for the sole purpose of helping to identify the sponsor and/or the sponsorship arrangement. We therefore asked the Licensee for its comments as to how the content complied with Rule 9.22(a). Response Turner submitted that the Kobot Federation toys were launched in February 203 and the Licensee was conscious of the need to ensure that viewers knew what the products were in order to satisfy Rule 9.9 of the Code which requires that sponsorship must be clearly identified. Turner said that it also took note of the fact that Rule 9.22(a) states that credits may include explicit reference to the sponsor s products, services or trade marks for the sole purpose of helping to identify the sponsor and/or the sponsorship arrangement. Turner stated that as the toys are so new to the market, it decided to include the sponsor s tagline Join the Kobots Federation with the dual purpose of utilising any brand recognition that may be spreading through the market and also as a method of pointing viewers to the section of the Kobots Federation website that would give them information about the products themselves. The Licensee added that the Kobots Federation website is not a direct purchasing site, and joining for free only provides more information and functionality on the site. Therefore Turner considered that Join the Kobots Federation was not directly encouraging the purchase of the Kobots toys. Turner submitted that Funtastic was a description of the programmes on the channels which were being sponsored. So the line Join the Funtastic was included to create a thematic link between the sponsored programmes and the sponsor, i.e. the viewer is encouraged to enjoy the sponsored programme with the sponsor. However, Turner acknowledged that the credits may create the impression of a commercial call to action. The Licensee said that it will ensure that for future sponsorship campaigns the creative teams are made aware of the need to include only a small amount of sponsor content and to create bespoke elements to create thematic link. The Licensee also submitted that these credits may not have met its usual because of a heavily restructured team, but that the compliance and legal teams have now ensured that refresher training sessions are being provided and that all new sponsorship campaigns are subject to additional checks. 0

7 May 203 Decision Under the Communications Act 2003, Ofcom has a statutory duty to set for broadcast content as appear to it best calculated to secure the objectives, one of which is that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with. The rules in Section Nine of the Code, among others, reflect this objective. The EU Audiovisual Media Services Directive limits the amount of advertising a broadcaster can transmit and requires that advertising is kept distinct from other parts of the programme service. Sponsorship credits are treated as part of the sponsored content and do not count towards the amount of airtime a broadcaster is allowed to use for advertising. To prevent credits effectively becoming advertisements, and therefore increasing the amount of advertising transmitted, broadcasters are required to ensure that sponsorship credits do not contain advertising messages. Rule 9.22(a) of the Code therefore requires that sponsorship credits broadcast around sponsored programmes must not contain advertising messages or calls to action, or encourage the purchase or rental of the products or services of the sponsor or a third party. The focus of the credit must be the sponsorship arrangement itself and references to the sponsor s products, services or trade marks should be for the sole purpose of helping identify the sponsor and/or the sponsorship arrangement. In particular, Ofcom s published guidance on Rule 9.22(a) states that credits that contain direct invitations to the audience to contact the sponsor are likely to breach the Code. In this case, Ofcom noted that when complying the credits Turner had considered that because viewers could not purchase the sponsor s products on the Kobots Federation website, the voiceover Join the Kobots Federation was not a call to action for viewers to contact the sponsor to purchase the sponsor s products. However, Ofcom considered that the purpose of encouraging viewers to Join the Kobots Federation (which was sometimes accompanied in the voiceover by the line Join the heavyweight heroes ) was to encourage them to use the sponsor s service to interact with friends, put details of their Kobot toy collection online and play online Kobot games. Further, Ofcom disagreed with Turner that that Join the Kobots Federation was not a call to action to purchase the toys because the website is not a direct purchasing site. As the toys are called Kobots Federation: Kobots Dual Action Game, the call to action could have been understood to be an encouragement to visit the website, but could also be understood to be an encouragement to purchase the toys from a retailer. Further, we noted Turner s submission that the line Join the Funtastic was an attempt to create a thematic link between the sponsored programmes and the sponsor. However we judged that this did not serve to create a clear link with the programming being sponsored, and instead simply appeared to be a call to action for the viewer to contact the sponsor, particularly as it followed the line Join the Kobots Federation. Simply because a sponsorship credit has, or could be argued to have, a thematic link to the programme(s) it is sponsoring, does not necessarily prevent it from also amounting to an advertising message. Ofcom therefore judged that the credits contained direct invitations to viewers to contact the sponsor and as such encouraged the purchase of the sponsor s products, in breach of Rule 9.22(a) of the Code. However, Ofcom welcomed the fact that

7 May 203 Turner is undertaking refresher training sessions for its staff to ensure compliance with Rule 9.22(a). Breaches of Rule 9.22(a) 2

7 May 203 In Breach The Daily Show Comedy Central Extra, 5 March 203, 20:00 Introduction Comedy Central Extra is owned and operated by Paramount UK Partnership ( Paramount UK or the Licensee ). The Daily Show is a satirical American news programme which mixes studio discussion about current events with filmed location reports where reporters take a comic look at different aspects of American life, often interviewing people from a particular community. A complainant alerted Ofcom to the use of the phrase fuck it by a reporter during an item on Texans who want to secede from the United States. Ofcom considered the material raised an issue warranting investigation under Rule.4 of the Code, which states that: The most offensive language must not be broadcast before the watershed (in the case of television).... We therefore asked the Licensee for its comments as to how the content complied with this rule. Response Paramount UK said that the use of the most offensive language in this case was not muted or bleeped as is usual practice as a result of human error. The Licensee said it accepted the language was unacceptable in a pre-watershed broadcast and wanted to unreservedly apologise to the complainant. The Licensee said that when complying this programme for broadcast at 20:00 it takes a special care to adhere to the Code rules on offensive language. Paramount UK said an investigation was made into how the mistake occurred and that as a result it has reviewed its compliance procedures. Paramount UK said it has made sure that the individuals concerned understand how seriously the mistake was and that sufficient procedures have been put in place to avoid any recurrence. Decision Under the Communications Act 2003, Ofcom has a statutory duty to set for broadcast content as appear to it best calculated to secure the objectives, one of which is that persons under the age of eighteen are protected. This objective is reflected in Section One of the Code. Rule.4 states that the most offensive language must not be broadcast before the watershed. Ofcom research on offensive language clearly notes that the word fuck Audience attitudes towards offensive language on television and radio, August 200 (http://stakeholders.ofcom.org.uk/binaries/research/tv-research/offensive-lang.pdf) 3

7 May 203 and its derivatives are considered by audiences to be among the most offensive language. Such language is unacceptable before the watershed, whatever the audience profile of the channel. In this case the use of the word fuck was clearly audible at 20:0 in this programme when broadcast. Ofcom notes the action taken by Paramount UK after it became aware of the transmission of the most offensive language in this broadcast. However, Rule.4 of the Code states unequivocally that the most offensive language must not be broadcast before the watershed. There was therefore a breach of Rule.4. Breach of Rule.4 4

7 May 203 In Breach Cross promotion for Sky Sports Sky News, 3 February 203, 23:47 Introduction A complainant alerted Ofcom to flashing images in a 30-second promotion for Sky Sports broadcast on Sky News. The licence for Sky News is held by British Sky Broadcasting Ltd ( BSkyB or the Licensee ). On assessing the material Ofcom noted that the promotion stated, Upgrade to Sky Sports and watch the sporting calendar come to life. This was followed by images of calendar pages being turned rapidly in the style of a flick book (a series of pictures that vary gradually from one page to the next, so that when the pages are turned rapidly, the pictures appear to animate) to depict various animated sporting activities and scenes. Certain types of flickering or intermittent images can trigger seizures in viewers who are susceptible to photosensitive epilepsy ( PSE ). Ofcom therefore carried out a technical assessment of the promotion against Ofcom s guidance to broadcasters on flashing images ( the PSE Guidance ). The flick-book animation sequences contained rapid variations in brightness due to the varying shadow cast by the pages. Some of these sequences, in total, around five and a half seconds, contained brightness changes at levels which exceeded the maximum limits in the PSE Guidance. Ofcom considered the material raised issues warranting investigation under Rule 2.2 of the Code, which states: Television broadcasters must take precautions to maintain a low level of risk to viewers who have photosensitive epilepsy. Where it is not reasonably practicable to follow the Ofcom guidance, and where broadcasters can demonstrate that the broadcasting of flashing lights and/or patterns is editorially justified, viewers should be given an adequate verbal and also, if appropriate, text warning at the start of the programme or programme item. Ofcom therefore requested comments from the Licensee on how the programme material complied with this rule. Response The Licensee explained that, as is standard practice, the compliance team reviewed the promotion before it went to air and queried whether it would pass a PSE technical assessment because of the flick book format. BSkyB therefore carried out a technical assessment, which the promotion failed. The promotion was therefore re-edited and the segments which failed the first assessment passed a second test. However, during the second test, other segments of the promotion failed, and so yet further edits were carried out. http://stakeholders.ofcom.org.uk/binaries/broadcast/guidance/8262/section2.pdf 5

7 May 203 After further edits, the sections of the promotion which had failed the second technical assessment were put through a third test and passed. BSkyB explained, however, that the whole promotion was not tested again at this point. The Licensee said that when Ofcom sent it the complaint, BSkyB put the whole promotion through another assessment and it failed. The Licensee confirmed that the promotion was then immediately pulled from air, reedited and tested again. The Licensee said that this version was compliant with Ofcom s PSE Guidance, and so was the version broadcast subsequently by Sky. Decision Under the Communications Act 2003, Ofcom has a statutory duty to set for broadcast content as appear to it best calculated to secure the objectives, one of which is that generally accepted are applied to the content of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and / or offensive material. Broadcasters are required under Rule 2.2 of the Code to ensure that adequate precautions are taken to maintain a low level of risk to viewers who have PSE. Given the significant potential harm that can result in viewers with PSE who are exposed to flashing images, Rule 2.2 makes clear that Ofcom expects broadcasters to maintain a low level of risk in this regard. Further, the PSE Guidance in this area (and the annexed Guidance Note on flashing images which is based on scientific research), are intended to limit the incidence of seizures. Ofcom s test of this material found that it did not comply with the limits set out in the PSE Guidance. Ofcom notes the Licensee s explanations of: the compliance checks made in advance of the original broadcast; why this material was broadcast in a noncompliant form; and, that this version was removed from air immediately when BSkyB was realised that the promotion did not comply with the PSE Guidance. Nonetheless the broadcast was in breach of Rule 2.2 of the Code. Breach of Rule 2.2 6

7 May 203 Resolved Viewer competitions Channel 5 and 5*, September to November 202, various times Introduction Channel 5 Broadcasting Limited ( Channel 5 or the Licensee) alerted Ofcom to a technical error that affected its telephone entry system in a number of its premium rate broadcast competitions conducted between September and November in 202. Viewers entering the competitions by telephone were required to leave their contact details during the call so that a recording of this information could be linked to their entry. The error caused some viewers telephone calls to be terminated before they had an opportunity to leave their details. Channel 5 confirmed that all entrants and their telephone numbers were automatically registered, so if an affected entrant had been selected as the winner, it would still have been possible for them to be contacted. Therefore, the error did not affect any entrant s chances of winning the competitions. However, it did present the possibility that entrants could have been concerned that their entry had been cut short before they left a verbal record of their contact details, causing them to redial to enter again, and consequently be charged twice. Ofcom considered the matter raised issues warranting investigation under Rule 2.4 of the Code. Rule 2.4 Broadcasters must ensure that viewers are not materially misled about any broadcast competition. It therefore sought the Licensee s comments as to how the competitions complied with this rule. Response The Licensee said that in mid-november its customer service team was contacted by two entrants of the competition featured in The Gadget Show whose calls to the competition line had been terminated prematurely. Channel 5 notified its service provider and asked it to investigate the issue. Channel 5 said that BT (which is the platform provider responsible for collating its telephone competition entries) then notified its service provider that a technical error had caused the early termination of some calls. Channel 5 said that: The root cause was identified to be some code in software deployed as part of an upgrade to the RIDE platform. Channel 5 said it had not been aware of the software upgrade. Channel 5 said that,863 entrants across 3 competitions were affected and at the time that the error was discovered, seven of these competitions had been completed. The Licensee examined the results of the completed competitions and found that in each case, they had a full recording of the winner s details or the winner had entered via a different route e.g. SMS. It therefore concluded that the technical issue had not affected the overall result of the seven completed competitions. 7

7 May 203 However, Channel 5 said it was concerned that some entrants to the 3 affected competitions may have thought their first entry had not been registered and therefore called again to enter the competition. It therefore identified,027 people across the 3 competitions who had made multiple entries. It said that it arranged to contact these people to ascertain whether they had intended to enter the competition more than once, or whether they had done so as a result of their initial call being cut short. The entrants of the seven completed competitions were given the option of receiving a refund or having their entry fee donated to charity. The entrants for the six active competitions were given an extra option of staying in the competition. Having completed this process, the Licensee proceeded to select the winners of the remaining six competitions. The winners either had full details during their telephone call or used an alternative route of entry and therefore it similarly concluded that the technical error had no impact on the result of these competitions. Channel 5 said that it did not believe that any entrant was materially affected by this incident but nonetheless has requested that BT notifies it of any other software changes prior to implementation. It added that it will monitor the situation via its service provider going forward to ensure this incident is not repeated. Decision Under the Communications Act 2003, Ofcom has a statutory duty to set for broadcast content as appear to it best calculated to secure objectives, including that generally accepted are applied to the contents of television... services so as to provide adequate protection for members of the public from the inclusion in such services of... harmful material. This objective is reflected in Section Two of the Code. Rule 2.4 requires broadcasters to ensure that viewers and listeners are not materially misled about any broadcast competition. In this case, Ofcom noted that a technical error caused some telephone calls to terminate before entrants had the opportunity to provide their personal details. As explained above, this may have caused confusion to entrants and prompted them to redial resulting in a second premium rate charge. However, Ofcom accepted that the technical error that affected some viewers entries was beyond the control of the Licensee. Nevertheless we welcome Channel 5 s confirmation that its service provider is liaising with BT to reduce the likelihood of any recurrence of this issue. We also noted the extensive process undertaken by the Licensee to eliminate any possibility of material harm to viewers caused by the error. In the circumstances, Ofcom considers the matter resolved. Resolved 8

7 May 203 Resolved Viewer competitions ITV and ITV2 channels, September to November 202, various times Introduction ITV Broadcasting Limited ( ITV ) alerted Ofcom to a technical error that affected the telephone entry system in a number of its premium rate broadcast competitions conducted between September and November 202. ITV s broadcast competitions often offer three telephone entries for the price of two. Viewers wishing to take advantage of this offer are invited to stay on the line after their second (or fifth) call to leave their details again to receive a third (or sixth) entry for free. However, as a result of the technical error in these instances, eligible entrants calls were terminated before they had an opportunity to leave their details and therefore, they did not receive their additional free entry. Ofcom considered the matter raised issues warranting investigation under Rule 2.4 of the Code. Rule 2.4 Broadcasters must ensure that viewers are not materially misled about any broadcast competition. It therefore sought the Licensee s comments as to how the competitions complied with this rule. Response ITV explained that in late November 202, BT (which is the platform provider responsible for collating its telephone competition entries) notified it of the issue. ITV said:...there was an error in the software introduced as part of an upgrade to the underlying BT platform. ITV added that it was not aware that the software upgrade had taken place until this time. ITV calculated that 4,833 entrants across 6 competitions were eligible for an additional free entry but owing to this error did not receive one. ITV said that each of its competition entries is assigned a 9 digit positive or negative number and that this is done entirely at random and not influenced by factors such as the size of the entry pool, the route of entry or the time of submission. The entrant with the lowest assigned number is the determined as the winner. ITV said that in order to ensure the competitions ran in accordance with its published terms, and that the affected entrants were not disadvantaged, it re-ran the selection process for the 4,833 affected entrants. If a lower number than the originally selected winner in each of the competitions was assigned to one of these entries, these entrants were awarded the original advertised prize. ITV also confirmed that the original winner would also keep the prize originally awarded to them. ITV said that, following the incident, it had asked BT to review its testing processes to ensure that they are as comprehensive as practically possible and expected an update from BT shortly. 9

7 May 203 Decision Under the Communications Act 2003, Ofcom has a statutory duty to set for broadcast content as appear to it best calculated to secure objectives, including that generally accepted are applied to the contents of television... services so as to provide adequate protection for members of the public from the inclusion in such services of... harmful material. This objective is reflected in Section Two of the Code. Rule 2.4 requires broadcasters to ensure that viewers and listeners are not materially misled about any broadcast competition. In this case, Ofcom noted that a technical error led to the exclusion of legitimate competition entries from 4,833 people who would have paid a premium rate for their two preceding entries on the understanding that they would receive an additional entry free of charge. Ofcom therefore considered that viewers could have been materially misled by the competitions promotions in respect of the free third (or sixth) entry offer. However, Ofcom accepted that the technical error that caused some viewers entries to be excluded was beyond ITV s control. Nevertheless we welcome ITV s confirmation that is liaising with BT to reduce the likelihood of any recurrence of this issue. We also noted the action taken by ITV to retrospectively include excluded entries in the competitions and ensure they had the same chance of winning. In the circumstances, Ofcom considers the matter resolved. Resolved 20

7 May 203 Advertising Scheduling Findings In Breach Advertising scheduling Bloomberg Television, various dates and times Introduction Rule 7 of the Code on the Scheduling of Television Advertising ( COSTA ) stipulates the maximum number of advertising breaks programmes may contain: Scheduled duration of programme Number of breaks (on non-psb channels) < 26 minutes One 26 45 minutes Two 46 65 minutes Three 66 85 minutes Four 86 05 minutes Five 06 25 minutes* Six *for every additional 20 minutes of programming, a further break is permitted. The Pulse is a daily programme broadcast on Bloomberg Television containing analysis of the global financial markets. Ofcom received a complaint from a viewer who considered that the broadcast of The Pulse on 7 October 202 contained more than the permitted number of advertising breaks. Upon viewing this 80 minute edition of the programme, Ofcom noted that it contained 6 internal advertising breaks seven more than permitted by COSTA. Ofcom therefore sought comments from Bloomberg LP ( Bloomberg or the Licensee ) as to how the material complied with Rule 7 of COSTA. Response Response regarding The Pulse, 7 October 202 The Licensee acknowledged that the number of internal advertising breaks in the programme exceeded the permitted allowance. It explained that the error resulted from some minor programming changes made the same day during which advertising breaks had been erroneously tagged to mirror the placement of breaks in its United States feed. It added that it had realised the oversight on the same day and had made the necessary changes to the software which it said were in place for the following day. The Pulse, 8 October 202 and 5 January 203 In order to confirm that Bloomberg s software changes had been effective in addressing this problem, Ofcom requested a recording of the following day s episode of The Pulse to ascertain whether it was compliant with COSTA. When viewing the 80 minute programme broadcast on 8 October 202, Ofcom noted that it contained 5 internal advertising breaks six more than permitted by Rule 7 of COSTA. 2

7 May 203 Additionally, we selected a later episode of The Pulse (broadcast on 5 January 203) for monitoring. This 20 minute episode contained internal advertising breaks five more than permitted by Rule 7 of COSTA. Ofcom therefore sought further comments under Rule 7 of COSTA from the Licensee in respect of these broadcasts, and its previous explanation. Response regarding The Pulse, 8 October 202 and 5 January 203 The Licensee said that despite being assured that the problem that occurred previously had been fully addressed, it admitted that both of the above broadcasts contained more internal advertising breaks than permitted. Bloomberg sincerely apologised for the oversight and said that it had assigned a senior traffic operative to monitor compliance. It added that that operative had undertaken a rigorous review of its logs and it was now confident that it was compliant with COSTA. The Pulse, 8 February 203 To ensure that subsequent broadcasts of The Pulse were compliant with COSTA, Ofcom selected the episode from 8 February 203 for monitoring. As with the episode broadcast on 5 January, we noted that this 20 minute episode contained internal advertising breaks five more than permitted by Rule 7 of COSTA. Ofcom advised Bloomberg of its findings and requested its further comments under Rule 7 of COSTA in light of this incident, and its previous assurances. Response regarding The Pulse, 8 February 203 The Licensee acknowledged that the episode contained one more internal advertising break than permitted under Rule 7 of COSTA. It explained that a traffic operative had scheduled a ten second advertisement during a break in the programme that contained a short market report and as a result, transformed it into an internal advertising break. It apologised once again for the oversight but asked Ofcom to take into consideration that it is a global broadcaster that has to build highly complex break structures of irregular durations in order to comply with different regulations across the world. It said that this was further complicated by the fact that the majority of its content is live and as such, breaks are scheduled at very short notice. Nonetheless, it recognised that these factors cannot excuse [its] errors which it stressed were inadvertent and not a deliberate attempt to flout COSTA regulations. However, on the issue of the other additional four advertising breaks Ofcom had identified in its monitoring, Bloomberg initially inferred that, when calculating the number of internal advertising breaks in this broadcast, Ofcom had counted sponsorship credits and a break that solely contained what it regarded as promos. It submitted that neither should be regarded as internal advertising breaks. In its Preliminary View, Ofcom stated that it appeared the Licensee had misunderstood the basis on which advertising is calculated for the purposes of COSTA which defines television advertising as: any form of announcement broadcast whether in return payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, 22

7 May 203 craft or profession in order to promote the supply of goods and services including immovable property, rights and obligations, in return for payment. The above definition is derived from Article (i) of the AVMS Directive. Ofcom also stated that interruptions that solely contain announcements made by a broadcaster in connection with its own programmes and ancillary products directly derived from those programmes, sponsorship announcements and product placement are not counted as advertising breaks for the purposes of the application of Rule 7 of COSTA. The Preliminary View identified several breaks containing an advertisement for Businessweek magazine. This magazine, although produced by Bloomberg, was clearly not an announcement in connection with its own programmes or an ancillary product directly derived from those programmes. We noted that it cost viewers a monthly subscription. As a consequence, any break that contained this material was counted as an internal advertising break for the purposes of assessing the programme s compliance with Rule 7 of COSTA. Having considered Ofcom s Preliminary View, Bloomberg said it had genuinely believed the announcements that aired for Businessweek magazine did not count as advertising breaks but [understood] why [it] should have counted them as advertising. It added that it has now adjusted its programming accordingly. Bloomberg apologised for the errors it had made and reiterated that it was committed to being compliant. Decision Under the Communications Act 2003, Ofcom has a statutory duty to set for broadcast content which it considers are best calculated to secure a number of objectives. One of these objectives is that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with. Articles 20 and 23 of the EU Audiovisual Media Services (AVMS) Directive set out strict limits on the amount and scheduling of television advertising. The Directive also makes clear that Member States are free to apply more restrictive requirements. COSTA sets out those rules required by the Directive and additionally those that Ofcom has determined appropriate for the United Kingdom. When calculating the number of internal advertising breaks, Ofcom counted only those that included spot advertisements and advertisements for Bloomberg s own products and services that were not directly derived its programmes for example, the Businessweek magazine. In all four cases, the number of internal advertising breaks significantly exceeded the permitted allowance. Ofcom was very concerned about the Licensee s representations throughout the course of this investigation. Despite repeated assurances from Bloomberg that it was confident that it was compliant, having implemented more robust compliance procedures, Ofcom continued to identify subsequent broadcasts of The Pulse that contained more than the permitted amount of internal advertising breaks. 23

7 May 203 Furthermore, it was only after 4 February 203, when Ofcom notified Bloomberg of a fourth incident, that Bloomberg inferred that Ofcom had identified more advertising breaks than it believed had been broadcast. Ofcom noted that in the three previous incidents, Bloomberg had not questioned the number of internal advertising breaks that Ofcom had indicated it noted through its own monitoring. Given that the number of internal advertising breaks in all four broadcasts of The Pulse had been significantly increased by the presence of the Bloomberg magazine advertisement, it did not appear to Ofcom that Bloomberg had sufficiently reviewed the broadcasts on 7 and 8 October 202, and 5 January 203. While Ofcom recognises the challenges faced by Bloomberg to ensure that its break patterns satisfy both commercial needs and regulatory requirements across the world, it nonetheless expects full compliance with its rules. In all four cases highlighted in this investigation, Ofcom noted that the number of internal breaks significantly exceeded the permitted allowance. It is therefore recording a breach of Rule 7 of COSTA in each case. We welcome Bloomberg s acknowledgement of its errors and its commitment to future compliance but in light of the repeated breaches identified in this investigation, Ofcom will continue to monitor the Licensee s compliance in this area and will consider further regulatory action in the event of recurrence. Breaches of Rule 7 of COSTA 24

7 May 203 In Breach Breach findings table Code on the Scheduling of Television Advertising compliance reports Rule 4 of the Code on the Scheduling of Television Advertising ( COSTA ) states:... time devoted to television advertising and teleshopping spots on any channel must not exceed 2 minutes. Channel Transmission date and time UMP Movies February 203, 5:00 Code and rule / licence condition COSTA Rule 4 Summary finding UMP Movies exceeded the permitted advertising allowance on this date by 80 seconds. Finding: Breach Rule 7 of COSTA stipulates the maximum number of internal breaks programmes (other than those exceptions in Rule 5) may contain: Scheduled duration of programme Number of breaks (on non-psb channels) < 26 minutes One 26 45 minutes Two 46 65 minutes Three 66 85 minutes Four 86 05 minutes Five 06 25 minutes* Six *for every additional 20 minutes of programming, a further break is permitted. Channel The Africa Channel Transmission date and time 26 January 203, 28:00 Code and rule / licence condition COSTA Rule 7 Summary finding Ofcom noted, during monitoring, that a programme scheduled to last 00 minutes included seven advertising breaks, two more than is permitted under COSTA. Finding: Breach 25

7 May 203 Fairness and Privacy cases Upheld Complaint by Mr C Panorama: Gambling Nation, BBC, 5 November 202 Summary Ofcom has upheld this complaint of unwarranted infringement of privacy made by Mr C. This programme about the increase in gambling addiction in the UK featured a number of people talking about their experiences, one of whom was the complainant, Mr C. Mr C was not named in the programme and attempts were made to obscure his face in the footage. However, his voice was clearly audible. Ofcom found that Mr C s privacy was unwarrantably infringed, since footage of him shown in the programme, which rendered him identifiable, was broadcast without his consent. Introduction On 5 November 202, the BBC broadcast an edition of the weekly investigative current affairs programme, Panorama. This edition looked at the growth in problem gambling in the UK since the introduction of new legislation five years ago that enabled both greater promotion of gambling and a number of new ways in which to gamble. In particular, it looked at the impact of fixed odds betting terminals ( FOBTs ) in betting shops which allow people to bet up to 00 every 20 seconds on the outcome of games or events with fixed odds. The programme featured a number of people talking about their addictions to gambling. One of these was the complainant, Mr C. Mr C was not named in the programme and attempts were made to obscure his face in the footage shown. However, Mr C s voice was not disguised. Following the broadcast of the programme, Mr C complained to Ofcom that his privacy was unwarrantably infringed in the programme as broadcast. Summary of the complaint and broadcaster s response Mr C complained that his privacy was unwarrantably infringed in the programme as broadcast because footage of him was included in the programme which rendered him identifiable without his consent. He said that the programme makers had assured him that his identity would be protected, but that the concerns he expressed after seeing the relevant footage prior to its broadcast were ignored. As a result, Mr C said that he was easily recognised by his friends and family. In response to this complaint, the BBC said that it regretted any distress which the broadcast of the programme caused to Mr C and repeated the apologies which had already been given to him by the programme makers. It said that the programme makers went to considerable lengths to respond to the concerns Mr C expressed during the production process and that he had confirmed that he was satisfied that appropriate action had been taken to safeguard his identity. However, the BBC 26